Colorado Halts Commercial and Residential Evictions

May 1, 2020 – AlertsBy Catherine A. Hildreth and Will Soper

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Colorado Governor Jared Polis issued an Executive Order on April 30 that temporarily prohibits the filing of eviction actions and the execution of eviction-related judgments, and bars landlords from charging late fees or penalties for a tenant’s failure to pay rent.

Commercial and residential landlords are immediately subject to the requirements and prohibitions of the Order, which will remain in effect until May 30, 2020, unless further extended.

The Order directs the Department of Public Safety to work with sheriffs, mayors and local leaders to suspend residential eviction activities. It also directs the Departments of Local Affairs, Labor and Employment and Regulatory Agencies to work with property owners and landlords to:

identify alternatives to evictions for tenants who fail to pay rent or for minor tenancy violations, and

develop model repayment plans for tenants.

Prohibited Actions

No individual may file or initiate an action for forcible entry and detainer (i.e., eviction) based on a tenant’s default of contractual obligations. This prohibition applies equally to commercial and residential properties.

No individual may remove or exclude a tenant from a residential premises nor enforce writs of restitution or possession or a judgment or other order requiring a tenant to surrender or vacate a residential premises. This prohibition only applies to residential properties, and does not apply to commercial properties. Whether or not posting a notice to quit or vacate is contemplated in this Order is unclear; residential landlords may be liable under this Order for doing so.

Landlords and lenders are prohibited from charging late fees or penalties for a tenant’s failure to pay rent for the duration of the Order. This prohibition applies equally to commercial and residential properties.

Exceptions Recognized

The eviction prohibitions above do not apply where a tenant poses an imminent and serious threat to another individual or causes significant damage to property. Possible exposure to or a positive test for COVID-19 is not a serious threat to another individual or property.

The Order does not relieve a tenant from its obligations under a lease, including the tenant’s obligation to pay rent. This would suggest that, after the Order is no longer in effect, landlords may have a cause of action against tenants for the tenant’s failure to pay rent or other breach of the lease while the Order was in effect.

Duty to Notify

Landlords must notify tenants at each property in writing of federal protections against evictions and foreclosures. Section 4024 of the Coronavirus Aid, Relief and Economic Security Act (CARES Act) is cited in the Order as one such federal protection, but it applies only to residential properties. It is unclear what, if any, federal protections apply to commercial properties and, therefore, whether notice is required to be provided to commercial tenants and what it should contain.

Key Takeaways

Residential landlords may not file eviction actions and may not remove or exclude a tenant by enforcing writs, judgments or orders, except for cases in which the tenant poses a serious threat to other individuals or causes significant damage to property.

A residential landlord’s liability under the Order for posting a notice to quit or vacate is unclear at this time.

Commercial landlords may not file eviction actions, except where such tenant poses a threat to another individual or causes significant damage to property, but commercial landlords are not prohibited from removing or excluding their tenants under an existing writ, order or judgment.

Both commercial and residential landlords are prohibited from charging late fees or penalties for a tenant’s failure to pay rent for the duration of the Order.

Both commercial and residential landlords have an affirmative duty to notify tenants of federal eviction and foreclosure protections.